BARCLAYCARD-No CCa? Any action Group?

[tosh1]

subbing

[roygoodbeat]

Recently received another copy of my application through Barclaycard. Then a letter of assignment saying it had been sold to Red. Ever since I have been receiving automated phone calls from Red, asking for me to call them. In addtion I have been getting weekly threat letters.

 

After my request that Barclays not pass on my phone number and after my notice asking them tio remove my number, why do Red insist on calling me and harrassing me. Ity seems that Barclaycard, mercesr, Calder, lowells, Red and any other muppet that my file is passed to feeel that they can keep calling despite my legal request.

 

As they have not produced all the required items under my orginal subject access request and compliance with my other requests, I last wrote to Barclaycard considering the account closed.

 

What position am I in if I make a full and final settlement based on the fact that they do not have all the correct paperwork to enforce anything, considering I have long since paid back the amount I borrowed and all they are trying to get is the interest, without a valid agreement.

[slick132]

Hi RGB,

 

An interesting approach but I'm not sure it'll work the way you want.

 

If the a/c has been sold (as confirmed by the letter of Assignment), it has nothing to do with BC now.

 

Send Red a CCA request as this may shut them up for a while. If Red see that you're not a push-over, they may be more prepared to consider a F&F Settl't in due course.

 

[roygoodbeat]

Does this mean I have to go through all the same old rubbish again with Red.

 

1) What does this mean in terms of agreements. If BC failed to produce the correct documents, and have outstanding items from the original SAR back i April 2009, does the new company have to abide by this?

2) I did write to BC stating unless they produced the info, it is deemed that they do not have the correct enforceable documentation and that I would consider the account closed. I have paid back the original amounts borrowed plus some interest and all they have sold on is unenforceable interest.

3) How can Red cal me constantly without my permission. BC, Mercers, Calder and co all ignored my request to remove my number and correspond in wrting only. I served them notice under the data protection act to remove my number. What gives Red the right to call my number?

4) The account was in dispute and never resolved.

5) What chances do ed have of enforing what is unenforceable through the courts (Or at least used to be?)

[slick132]

Hi RGB,

 

The reality here is that what you think is right and/or fair is not the same as what BC or Red think.

 

Even if you complain to the FOS, they are unlikely to agree with you and will say that BC produced enough to comply with the CCA request and that BC had the right to sell the a/c to Red.

 

You can now tell Red that you'll pay nothing until you receive a copy of the executed credit agreement. See if that stalls them or enables them to discuss a F&F with you.

 

If Red try to take court action without the credit agreement, you should have a good chance of defending.

 

[roygoodbeat]

I will subject acces request them, however, what right do red have to keep caling myself. I have never given them permission so how did they obtain my number? If it was passed on by BC, then BC are in breach of my request to remove my telephone number. This has been requested on a number of occasions, even before this all started.

 

Surely if Red have been given this, they are in breach as it will say o any letters or info they have been given that I have requested this. Secondly, if they obtained my number from else where, surely they are breaking the data protection act.

 

In terms of BC, the reconsituted agreement does not match the application form they said was my agreement, therefore it surely is still in breach of my orginal request. I have had several t&c's from them, all of different dates. This must mean that what they provided is made up and therefore misleading.

[slick132]

Hi RGB,

 

Will you SAR them or did you mean you'd send Red a CCA request ?

 

Looking at this objectively, your opinion that BC were wrong to sell the a/c and that Red should not be chasing for payments, is based on the assumption that the a/c is in dispute. But this argument may not be sustainable.

 

The issues you raise above would be valid if you were defending in court but, until that stage, you have your opinions and BC and Red have theirs.

 

[roygoodbeat]

I am going to sar them at first. This is mainly to see what they have on their logs as I am sure that they will send the same things bc have done. Which means they too do not have a valid agreement.

 

Its the fact I keep getting these prerecorded messages and texts. Surely it is against the law for them to harress me as I have never given red/ lowells the permission to call. I revoked this with bc, mercers and all the other debt agents they tried to throw at me.

 

The upsettiong thing is just when I am getting back on track, I start to get this rubbish again. From reading these forums recently, lenders and their solitiors are eroding the law and regs that they were meant to abide by.

[slick132]

If you think Red are overstepping the mark in contacting you the way they are, use the harassment letters from the library.

 

Take the initial steps to warn them off and, if they continue to harass in ways that are unacceptable, then take further action.

 

The trouble is that you have to do this over and over, each time the debt is passed on. You can only hope that, now that BC have sold the debt, it won't continue to be passed around as much.

 

[roygoodbeat]

Further to this, I have SAR requested them. In addition I gave them a section 10 notice to cease processing my data giving them 7 days to comply. Day 8 they broke it. I also received a letter yesterday.

 

1) It states that they will send everything within the 40 day period but only what they have on file. They stated that I will need to do the same to barclaycard as they will not have all the information.

 

2) They also wrote "We would advise you that upon purchaser of these accounts from Barclaycard, the default entries that have been recorded by them were then legally transferred into our name. We are able to process your data without your consent as from the point of purchase of these debts from Barclaycard, Lowell Portfolio 1 Ltd has become the data controller as defined by the data protection act in respect of this matter in place of them.

 

As the legal owner of the debt Lowell Portfolio I Ltd retains the right to process your personal data. Therefore we are unprepared to cease processing your date in respect of these debts on the basis this is required for the performance of a contract you are a party."

 

I have revoked permission for Barclaycard to call me and to remove my contact number from as early as 2008, before this all took place. I have asked for a written explanation for them calling me and how they got my telephone number, which they have not answered directly.

 

Any thoughts?

 

I also received a letter from Hamiltons who have threatened that they could go to court and apply for a ccj, which could lead to enforcment such as earnings attachment, bailiffs and securing the debt on my property.

 

Surely under the new OFT guidelines this could be classed as misleading as Barclaycard never produced a document that was a valid credit agreement enforceable and compliant under the 1974 the consumer credit act.

[slick132]

So do Lowells now own the debt and Red are seeking payment as a DCA acting for Lowells ?

 

See what comes back in response to the SAR.

 

The situation regarding legal enforcement remains the same - without the credit agreement, you should be able to defend against court action.

 

[roygoodbeat]

Lowell own the alleged debt.

 

If it the same as what Barclaycard did then they do not have an enforceable agreement. If this is the case and they ae threatening court action, surely they are in breach of the new OFT guildlines as they are knowingy making treats that they cannot carry out. (Using deceptive methods which is fraud in other legal situations)

 

As for them refusing to halt processing my data and continuing to call me, do I report them to the ICO? Again, if Barclaycard passed on my number after several requests for them to remove my number. and Lowell start using it knowingly that I have not given permission, are they breaking data protection laws and those of ofcom?

[slick132]

Hi RGB,

 

Not sure if you're right on this.

 

There's nothing to stop them taking court action if they wish - that's their prerogative. Whether such action succeeds is, of course, up to the court.

 

Re the processing of your data and the continued use of your phone number, this hinges on whether they have the right to continue to seek payment without the original credit agreement. The bank and/or DCA will say that they have that right.

 

If you want to try the ICO anyway, there's no harm in trying.

 

[roygoodbeat]

Barclaycard never produced a valid agreement, only areconstructed one. This never matched the three sets of terms and conditions they sent. Just before Lowell took over, BC finally sent a copy of theapplication form. None of the documentation, if used does not have all theprescribed terms and therefore unenforceablein a court of law.

 

I known that its their perogative that they can go to court however, reading the new OFt guidelines:

 

However, letters which refer to legal action would, inthe OFT's view, have the

potential to be perceived as a threat of legal action andtherefore could be an

unfair and oppressive business practice:

 

1) against someone who has a legitimate dispute with the original creditor

2) when information on the account may beincorrect and the account could not be pursued through the courts, for example if the debt is statute barred

 

Without this credit agreement conforming to the 1974 CCA act, point 2 surely applies.

 

In addition their letter is not clear when they stated that they would be instructing Hamtons International. The new code states:

 

The use of different trading styles by an organisation could potentially be

misleading if the organisation is not identified. Some debt collection agencies

(“DCAs”) use different trading styles to escalate debtsthrough the collection

cycle and some also use different trading styles or departmentsto differentiate

between the types of recovery activity which may takeplace. For example, if a

debtor has previously informed the DCA of severefinancial hardship, the debt

may be referred to a specialist „Financial Hardship‟unit.

 

However, whenever a trading style is used, the OFT hasmade it clear that they

see no legitimate purpose in failing to be transparentand therefore if the debt is

being escalated or transferred to a different departmentwithin the same

company and/or to a different company within the samegroup of companies (an

associated company under s.184 CCA74), the collection letter should make this

and the reason for that escalation or transfer, clear.

 

They did not make it clear that they were using a different trading style. This could be interesting for other dca's who act in the same manner.

 

My point with my phone number I revoked permission for BC to use it back in 2008, before I fell on hardtimes. The fact that they are still calling it and refusing not to call is in breach of the data protection act and can be deemed as harressment.

 

Over the years I have paid back everything I borrowed from BC and I am only, like most people wishing to have this dispute resolved. Without a valid agreement, they are not entitled to enforce the interest through the courts and should not keep threatening to go to court.

Finally I have noted that Lowells have conducted about 3 unrecorded credit searchs recently. Forgive me if I am wrong, but Lowells don't give credit and I have not given permission for them to conduct a credit search.

Edited October 31, 2011 by roygoodbeat

[slick132]

Hi RGB,

 

I still don't agree with you.

 

If BC or any other bank or DCA believe they have a chance of getting a CCJ, even though they don't have the original executed credit agreement, they can take court action. It is then up to the judge to decide who should win. Hence, I don't agree that point (2) above would necessarily apply.

 

I do hope the business trading style Guidance helps cut down on the banks using multiple guises to pursue debts. Could this really be an end to BC morphing into Mercers, the Calders, etc, etc..........

 

Are Hamiltons contacting you as a legal firm of solicitors looking to take court action, or do you think they are just another DCA.

 

[roygoodbeat]

Hamptons appear to be acting as solicitors but on their stationary it states its a trading style (In small print) They are even texting on a different number, same area code.

[roygoodbeat]

Hi

 

I have now subject access requested them.

 

They have two accounts. The first, orginally BC, they said that the agreement was enclosed, but was not. Same tactic BC used. Secondly did include a list of calls, but the majority of the times they called are missing on their list.

 

The second account, they included a Morgan Stanley Application form but not the agreement. The form they sent does not contain the prescribed terms. The call log here does not include all the text/ calls.

 

What should I do? In dispute letter plus request a copy of my credit agreement which complies with the 1974 act? Also to ask if they have the original copy??

[slick132]

What should I do? In dispute letter plus request a copy of my credit agreement which complies with the 1974 act? Also to ask if they have the original copy??

 

Yes, you could do this.

 

If they have no copy of the credit agreement, that should reduce their chance of any success with a court claim.

 

[sequest]

If your Agreement was taken out prior to April 2007, the Bank is still required under Section 127(3) to produce the original, signed document.

This is not discretionary. Without it, the debt cannot be enforced in Court.